CONCORD — A part-time police officer is suing the state, claiming the physical fitness tests given to officers discriminate against men because the men have to outperform the women.

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By Elizabeth Dinan

seacoastonline.com

By Elizabeth Dinan

Posted Dec. 12, 2012 at 2:00 AM

By Elizabeth Dinan
Posted Dec. 12, 2012 at 2:00 AM

» Social News

CONCORD — A part-time police officer is suing the state, claiming the physical fitness tests given to officers discriminate against men because the men have to outperform the women.

The Barnstead officer, David Scott, claims in a federal lawsuit against the state of New Hampshire, and the state Police Standards and Training Council, that he failed the running portion of the police physical fitness test by 11 seconds. If he were a woman, he claims, he would have passed, because the minimum finish time is slower for women.

"I went to the academy when I was 52 years old and I finally found the career I'm in love with," he said. "But I can't do it full-time because I was 11 seconds slow."

Scott states in his suit that he was hired as a full-time Barnstead officer in November 2009, but his full-time status was conditional on his completion of the state's full-time police academy. He tells the court he met the required bench press weight and did the mandated number of sit-ups and push-ups, but missed the mark for the 1.5-mile run by 11 seconds.

He was allowed to retest the running portion at least 10 times, he said, but still didn't meet the required time.

"I should've passed, but I didn't," he said. "I didn't try as hard as I should have. Shame on me."

But, he adds, he ran fast enough to be a female police officer.

"If I was a woman, I would have passed every time I retook that test," he said Tuesday.

Scott's federal lawsuit claims he asked the PSTC in December 2011 if it would waive the running portion of the test for him, but his request was denied. He said he then brought his complaint to the state Commission for Human Rights, the U.S. Equal Opportunity Commission and to legal counsel for the governor's office, all without success. The governor's office, he wrote in his federal lawsuit, told him "to hire a good attorney."

"I want to make myself very clear, I do not have any problem with female police officers. They're a tremendous asset," he told the Herald. "What I want is a minimum standard. But let's set it for police officers. Not for male police officers and female police officers."

As a comparison, he points to United Parcel Service, which, he said, requires all of its workers to be able to lift a certain number of pounds.

Scott said he also has no complaints with the police department where he works part-time, noting "this is not their fault."

He said the PSTC standards, as applied by the state of New Hampshire, requires candidates to meet a 50th percentile in the physical fitness test to become full-time police officers, but once they're hired and have to re-test, they only have to meet the 35th percentile to keep their jobs. Officers hired before Jan. 1, 2001, don't have to take the physical fitness test at all, he said because they're grandfathered.

Scott is asking the court for a jury trial and a court order that he be certified as a full-time police officer and paid retroactive pay and damages.

On Monday, Senior Assistant Attorney General Nancy Smith filed a motion with the federal court asking it to dismiss Scott's lawsuit. On behalf of the PSTC and the state of New Hampshire, Smith says the case should be dismissed because neither the police training organization, nor the state, are Scott's employer.

Scott said he's had that argument with state entities before. He counters that cities and towns have no say in whether or not their officers have to take the tests, or how they have to score on them to become certified.

"I'm a police officer every day," he said. "But I can't work more than 1,300 hours a year. It's not fair."